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Washington Fashion Week 2: The Design Piracy Prohibition Act

Narciso Rodriguez before Congress -- and yes, your favorite law prof just behind him wearing grey (Narciso, of course)Valentine's Day in the U.S. Congress was about anything but eros, or even caritas, as House Democrats refused to extend the government's surveillance powers and Republicans staged a walkout.  Nevertheless, bipartisan pleasantries prevailed in the House Subcommittee on Courts, the Internet, and Intellectual Property's "Hearing on Design Law:  Are Special Provisions Needed to Protect Unique Industries?"  (Hint:  Yes -- for fashion at least.)

The oversight hearing was interrupted twice to allow committee members to go and vote, or otherwise put out fires on the House floor, leaving attendees to mill around in what one described as "a strange cocktail party without drinks."  (Quite a few people took advantage of the breaks to have their pictures taken with the award-winnning fashion designer and witness Narciso Rodriguez.)  Depite the delays, however, there was no doubt that Congress is taking the need for fashion design protection seriously. 

THE WITNESSES

Representative Bill Delahunt (D-MA), one of the original co-sponsors of the Design Piracy Prohibition Act, set the tone for the afternoon with his opening testimony, in which he linked fashion design piracy with counterfeiting.  (After all, every fake handbag out there starts with a copied design, and labels are often added stateside to avoid Customs enforcement.)  Rep. Delahunt further noted that one of the sectors of the troubled U.S. economy that actually produces a surplus in the trade balance is intellectual property, and that passing stimulus packages without recognizing and protecting U.S. strengths is "absurd and ridiculous." 

The next witness, Professor Bill Fryer, offered an overview of the issue of design protection across various industries -- a subject with which he's been engaged for many years.  In response to questions from Representatives Howard Coble (R-NC) and Brad Sherman (D-CA), Prof. Fryer noted that the "purpose of IP is to prevent unfair business practices" and that when a competitor takes apart one of Narciso's designs, measures the pieces, and creates a cheap reproduction, there's not much doubt that copying has occurred.  He ultimately concluded that, though the bill as introduced needs some refinements, industry-specific protection would be a good thing for fashion. 

Narciso Rodriguez testified next on behalf of the CFDA.  His very personal prepared statement told the story of a Cuban-American boy who took out loans to attend Parsons and got his big break when he made a wedding gown for his dear friend Carolyn Bessette's marriage to John F. Kennedy, Jr., only to see it copied nearly 8 million times.  Publicity may be nice, but it doesn't pay the bills -- and Narciso has been copied over and over again, to the point where he has never been able to launch a lower-priced diffusion line himself.  Last year Liz Claiborne acquired an interest in his company, finally giving him a degree of financial stability, but he hasn't forgotten what it's like to be a struggling young designer or how it feels to have what he calls "my DNA" stolen.  When his time was up and he was asked to summarize his testimony, Narciso looked at Subcommittee Chairman Howard Berman (D-CA) and said, "We need your help."  Which pretty much says it all.   

Narciso Rodriguez Fall 2003 original (left) and ABS copy

Next up was a clothing manufacturer, Steve Maiman, with testimony drafted by...let's just say one of the usual suspects.  Counterfeit Chic deliberately didn't check out his merchandise to determine its "inspiration," but the effort turned out to be unnecessary anyway.  He actually showed up with a report from a trend service, claiming that "all designers do it the exact same way."  Narciso begged to differ, noting that he doesn't subscribe to any such reports and that his inspiration, like that of many of his artistic colleagues, comes from a more ethereal source.  Later Narciso added, "I do wake up and work on a mannequin, as do many other creators who create original garments."  And not just at the couture level, either.  (Later Counterfeit Chic heard more than one fashionable attendee express embarrassment that the manufacturer had actually shown up with evidence of his own lack of originality.)

The final two witnesses, Carl L. Olsen and Jack Gillis, addressed the issue of design protection for automobile parts.  While cars certainly make nice accessories, there seemed to be general agreement among both members of Congress and witnesses that the questions currently being raised by the fashion industry and the automotive industry are quite different.  As Representative Bob Goodlatte (R-VA), an original co-sponsor of the Design Piracy Prohibition Act, noted, replacement parts really aren't an issue for fashion designs (the occasional lost button aside).

KEY ISSUES

In the Q&A, subcommittee members focused on a couple of significant details with respect to fashion design protection, in particular how to draw the line between inspiration and copying and what the impact of design protection on consumers would be. 

On the first issue, the imitation/inspiration divide, it became clear that the largest trade organizations within the fashion industry have already engaged in extensive discussion of what should and should not be protected and how to express the difference in legislative terms that recognize original designs while leaving general trends in the public domain.  Of course, courts already make similar distinctions in copyright, patent, and trademark cases.  (Full disclosure:  Your favorite law prof has been at the table during many of those discussions, not representing anyone in particular but offering an opinion as to the efficacy of proposed language and its potential impact on, among others, emerging designers.) 

As a board member of the CFDA, Narciso noted that talks with the AAFA have been ongoing and that he's hopeful that there will be final agreement within a month.  Both during and after the hearing, subcommittee members congratulated Narciso and the CFDA on their efforts to achieve unanimity within the fashion industry. 

Manufacturer Maiman, when pressed by Rep. Goodlatte, conceded that he was "not against [exact] copying" -- what Rep. Berman had earlier referred to as xeroxing.  Not surprising, given Maiman's earlier admissions about the source of his designs, but he acted reluctant give a direct answer out loud.  (Narciso's response?  "I'm appalled.  That's theft!")

On the second issue, the effect on consumers, Narciso noted that fashion consumers in Europe, which already has design protection more extensive than that proposed in the bill, actually have better low-priced options than U.S. consumers.   Who knew that he likes to buy his own inexpensive, well-designed underwear in Spain? 

THE DOCUMENTS

(Check back for updates, if any.)

THE VERDICT

Fashion Designers 2, Copyists 0 (counting the previous subcommittee hearing)

Automobile manfacturers -- well, let's just say Counterfeit Chic's focus was elsewhere.